COLEPE V Maseru City Council & 4 Others (CIV/APN/0040/2024) [2024] LSHC 48 (28 March 2024)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CIV/APN/0040/2024 In the matter between: COLEPE 1st APPLICANT LESOTHO PUBLIC SERVICE STAFF 2nd APPLICANT ASSOCIATION LESOTHO ASSOCIATION OF TEACHERS (LAT) 3rd APPLICANT LESOTHO SCHOOLS PRINCIPALS 4th APPLICANT ASSOCIATION (LESPA) LESOTHO NURSES ASSOCIATION (LNA) 5th APPLICANT QILOANE NURSING ASSISTANTS 6th APPLICANT ASSOCIATION (QINUASA) and MASERU CITY COUNCIL 1st RESPONDENT OFFICER COMMANDING, CENTRAL 2nd RESPONDENT POLICE STATION, MASERU COMMISSIONER OF POLICE 3rd RESPONDENT Page | 1 MINISTER OF HOME AFFAIRS POLICE 4th RESPONDENT AND LOCAL GOVERNMENT ATTORNEY GENERAL 5th RESPONDENT Neutral citation : COLEPE and 5 Others v Maseru City Council and 4 Others [2024] LSHC 48 CIV (28 February 2024) CORAM : KHABO J., HEARD : 27/02/2024 RULING : 28/02/2024 FULL REASONS : 28/03/2024 SUMMARY Practice and procedure - Exhaustion of local remedies - Applicants refused a permit to hold a procession by the Officer Commanding, Central Police Station, Maseru which had been sought in terms of Section 3 (1) of the Public Meetings and Processions Act, 2010 - Applicants before court to seek the review and setting aside of the Officer’s decision which they consider irrational, unreasonable and a violation of their constitutional right to associate as well as an order compelling the said Officer to issue the permit forthwith to enable them to hold a peaceful procession with a view to presenting their petition for a 25% increase to their salaries to the Prime Minister - Applicants ordered to exhaust local remedies prescribed by the Act. Page | 2 ANNOTATIONS Statutes and subsidiary legislation Constitution of Lesotho, 1993 Lesotho Mounted Police Service Act, 1998 Public Meetings and Processions Act, 2010 Cases cited Lesotho Principal Secretary Higher Education and 2 Others v Kopano Metsing C of A (CIV) No. 13/2021 Professional Logistics International (Pty) Ltd v The Minister of Trade and Industry and 4 Others CIV/APN/326/2020 Other jurisdictions South Africa Koyabe and Others v Minister of Home Affairs and Others 2009 (12) BCLR (CC); 2010 (4) SA 327 (CC) Page | 3 JUDGMENT KHABO J., Introduction [1] Applicants are organisations representing public officers in their various sectors. According to the Applicants this application is a culmination of a meeting they held with the Honourable Prime Minister, Mr Sam Matekane (the Prime Minister) not long after his assumption of office in October, 2022 wherein they tabled a demand for a 25% increase to their salaries. They aver that, following their meeting, the Prime Minister undertook to establish a Task Team to look into the issue. [2] They intimate that the said Task Team was duly established and subsequently held several meetings wherein they were represented by COLEPO (Coalition of Public Employees), 1st Applicant herein. They aver that the meetings failed to bear fruits. Disillusioned, they decided to have audience with the Prime Minister to complain about lack of progress on their deliberations with the Task Team. They approached the Prime Minister’s office where they say they were denied access to him by his officers. They Page | 4 felt at that stage a procession was the only open avenue through which they could have access to the Prime Minister to present their petition for the proposed 25% salary increase. [3] Section 3 (1) of the Public Meetings and Processions Act, 20101 requires any person intending to hold a public meeting or a procession to obtain permission from the Police. It provides that: A person who wishes to hold a public meeting or procession in an urban area shall, at least seven days before holding the public meeting or procession, give a written notice to hold the public meeting or procession to an officer in command of police in the area where the public meeting or procession in intended to be held. [4] To facilitate the procession, Applicants applied, simultaneously, for a permit to both the Maseru City Council,2 1st Respondent herein and the Officer Commanding, Central Police Station, Maseru,3 2nd Respondent herein to hold a peaceful procession from Setsoto stadium to Sefikeng sa Moshoeshoe 1 Act No. 14 of 2010 2 ‘MCC1’ to the founding affidavit 3 Application not attached Page | 5 on 28th February, 2024. The Maseru City Council advised them to first seek the Prime Minister’s consent for the presentation of the petition. [5] The Officer Commanding, Central Police Station, Maseru turned down their application on reasons, among others, that he had in his possession intelligence that the proposed procession/march is “likely to disturb peace and public safety”4 and also bringing it to their attention that LEPOSA (Lesotho Police Staff Association) as an affiliate of COLEPO is prohibited from participating in processions by the Lesotho Mounted Police Service Act, 1998.5 [6] The latter response did not augur well with the Applicants and they responded through their legal representative, Thoahlane Legal Chambers.6 The 2nd Respondent replied indicating that his considerations are unchanged and confirmed his refusal to have the procession held. Aggrieved by the refusal, Applicants sought the intervention of the Minister of Home Affairs, Police and Local Government pointing out that they considered the decision irrational. The appeal was tendered to the Honourable Minister (the 4 ‘MCC 3’ to the founding affidavit at para 4 5 Act No. 7 of 1998 6 ‘MCC 4’ to the founding affidavit Page | 6 Minister) on 22nd February, 2024 demanding a response on the same day before 1600 hours. The Minister did not respond as requested and hence this current application brought on an urgent basis. [7] The Public Meetings and Processions Act, 2010 provides in Section 6 (1) and (2) that: 1. Where in terms of the provisions of this Act, an application for permission to hold a public meeting or procession is refused or permission granted is cancelled, the aggrieved party may, within three days of such refusal or cancellation, appeal to the Minister who shall expeditiously dispose of the appeal by either upholding or dismissing it; 2. If the Minister decides to dismiss the appeal, the Minister shall first give a hearing to the applicant and shall furnish reasons for the dismissal of the appeal Applicants’ case [8] Applicants are before this court to seek a Rule Nisi returnable on a date and time to be determined by this court couched in these terms: Page | 7 1. (a) That the periods and modes of service shall not be dispensed with on account of urgency; (b) That the 1st and 2nd Respondents be ordered to issue a permit forthwith to the Applicants to hold a peaceful procession on the 28th February, 2024 from Setsoto Stadium to Sefikeng sa Moshoeshoe from 10:00 to 1400 hrs; (c) Alternatively, in the event the 1st and 2nd Respondents not complying with order (b) above, the Applicant be allowed to proceed with their peaceful march without a permit. 2. That the decision of the 1st and 2nd Respondents to dismiss Applicants’ application for a permit be reviewed, corrected and set aside as null and void ab initio; 3. Costs of suit in the event of unsuccessful opposition hereof; 4. That Applicant be granted such further and/or alternative relief as this Honourable Court deems fit; 5. That prayers 1(a), (b) or (c) be ordered to operate with immediate effect as interim reliefs. [9] Applicants are now just pursuing prayer 1(a) on urgency and abandoning prayers (b) and (c) in the interim, pending finalisation of the review Page | 8 application in which they are seeking the review and setting aside of 2nd Respondent’s decision to refuse to issue them a permit averring that the decision violates their constitutional right to freedom of expression enshrined in the Constitution of Lesotho, 1993. [10] Prayer (b) was to the effect that the 1st and 2nd Respondents be ordered to issue them a permit forthwith to hold a peaceful procession on 28th February, 2024 from Setsoto Stadium to Sefikeng sa Moshoeshoe from 10:00 to 1400 hours. Prayer (c) in the alternative was that in the event of the 1st and 2nd Respondents failing to comply with this order, Applicants be allowed to proceed with their peaceful march without a permit. The court now only has to determine urgency. It should be noted that this application was moved on 27th February, 2024 when the proposed march was to be held on 28th February, 2024. Respondents are opposing this application. [11] The court was addressed on urgency by both Counsel, but further mero motu raised the issue of exhaustion of local remedies which Applicants felt they had explored. The court made a ruling that the notice given to the Minister was not sufficient, hence concluded that the application is prematurely before it. It is worth noting that Applicants lodged their appeal to the Page | 9 Minister on Thursday 22nd February, 20247 demanding a response by 1600 Hours, the very same day,8 and that otherwise they will assume “that the appeal has been declined and proceed to exhaust other legal measures.” The Minister did not respond. They approached this court on Tuesday, 27th February, 2024 for an urgent relief. [12] The court views the time given to the Minister insufficient, it being an ultimatum of a few hours. The internal remedy is as good as not having been exhausted. It was basically impractical to get a response from someone of the Minister’s calibre within a few hours. The court takes cognisance of the Ministers’ busy schedules. Whilst we appreciate that Section 6 (1) of the Public Meetings and Processions Act, 2010 enjoins the Minister to “dispose of the appeal expeditiously,” the time given by the Applicants was unreasonable. Salary being a sensitive issue, Applicants might have just been anxious to have the matter disposed of. [13] Applicants ought to have waited until the appeal proceedings were finalised. As a general rule, where a statute provides for an internal remedy, as the above Act does, the applicant must first exhaust the remedy availed therein. 7 ‘MCC 6’ to the founding affidavit 8 Para 3 ibid Page | 10 This principle was alluded to by my brother Mokhesi J., in Professional Logistics International (Pty) Ltd v The Minister of Trade and Industry and 4 Others9 where he pointed out that: [T]he Act [referring to the Trading Enterprises Order, 1993) provides for an appeal channel to the person aggrieved by the decision of the Board, to the Minister of Trade, within 14 days of the receipt of notification of the decision. My reading of this provision is that it provides for a typical appeal channel to the Minister to deal with matters which are incidental to the application of the Trading Enterprise Order. In respect of those matters which are incidental to the application of the Order, the jurisdiction of this court to exercise its review powers is deferred until the internal appeal process is completed, but not when the challenge pertains to the illegality or irregularity of the administrative decision. There is a reason why the internal administrative processes should be given a chance, in the absence of illegality and irregularities. [14] The said reasons were stated in Koyabe and Others v Minister of Home Affairs and Others10 as follows, cited in the above case: 9 CIV/APN/326/2020 at para 8, pp. 9 - 10 10 2009 (12) BCLR (CC); 2010 (4) SA 327 (CC) Page | 11 36. First, approaching a court before the higher administrative body is given the opportunity to exhaust its own existing mechanisms undermines the autonomy of the administrative process. It renders the judicial process premature, effectively usurping the executive role and function. The scope of administrative action extends over a wide range of circumstances, and the crafting of specialist administrative procedures suited to the particular administrative action in question enhances procedural fairness as enshrined in our Constitution. Courts have often emphasized that what constitutes a “fair” procedure will depend on the nature of the administrative action and circumstances of a particular case. Thus, the need to allow executive agencies to utilize their own fair procedures is crucial in administrative action. In Bato Star per O’Regan, J held that: a court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A court should thus give due weight to findings of fact and policy decisions made by those with special expertise in the field. The extent to which a court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision - make … A decision that requires an equilibrium to be stuck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the courts. Often a power will identify a goal to be achieved but will not dictate which route should be followed to achieve that goal. In such circumstances a court should pay due respect to the route selected by the decision - maker. Once an administrative task is completed, it is then for the court to perform its responsibility, Page | 12 to ensure that the administrative action or decision has been performed or taken with the relevant and other legal standards. 37. Internal administrative remedies may require specialized knowledge which may be of a technical and/or practical nature. The same holds true for fact-sensitive cases where administrators have easier access to the relevant facts and information. Judicial review can only benefit from a full record of an internal adjudication, particularly in the light of the fact that reviewing courts do not ordinarily engage in fact-finding and hence require a fully developed factual record. Disposal [15] It was in the above spirit that Applicants in casu were ordered to exhaust internal remedies provided in the Public Meetings and Processions Act, 2010. The court considered the ultimatum of a few hours given to the Minister insufficient. As aforementioned, Section 6 (1) and (2) of the Public Meetings and Processions Act, 2010 provides that an aggrieved party whose permit has been refused may appeal to the Minister responsible for Police, which the Applicants did. Page | 13 [16] In the court’s view, it was approached prematurely. The court is fortified in its decision by the remarks in Principal Secretary Higher Education and 2 Others v Kopano Metsing11 that “the Respondent was not entitled to seek redress in the High Court against his dismissal. He should have exhausted the internal remedies under the Public Service Act.” The Court held further that “the ineluctable result is that the judgment and order of the High Court must be set aside.” 12 [17] ln line with the decision of the court in the case above the court concludes that it is open to the Applicants to pursue their appeal remedies to the Minister as provided for under the Public Meetings and Processions Act, 2010, if so advised. ORDER In the result, the following order is made: (a) Application is dismissed; and 11 C of A (CIV) No. 13/2021 at p. 5, para 6 12 Para 9 p. 5 ibid Page | 14 (b) The Court feels not persuaded to grant costs. ______________ F. M. KHABO JUDGE For the Applicants : Adv., P. R. Thoahlane For the Respondents : Adv., P. T. B. N. Thakalekoala with Adv., T. S. Mochesane Page | 15